RUDOLPH CONTRERAS, District Judge.
Defendants in this action—the Office of the High Representative (OHR), and the former and current High Representatives—are international entities tasked with managing peace agreement implementation efforts in Bosnia and Herzegovina. See Zuza v. Office of High Representative, 107 F.Supp.3d 90, 91-92 (D.D.C. 2015), ECF No. 18 (discussing the factual background of this case). Because the Court found Defendants immune from suit under the International Organizations Immunities Act (IOIA),
Zuza timely filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e). See Fed. R. Civ. P. 59(e); Pl.'s Mot. Recons., ECF No. 19. Zuza's motion urges the Court to reconsider its dismissal because he claims that (1) King v. Burwell, 135 S.Ct. 2480 (2015), is an intervening change in controlling law, and (2) the Court's decision was based on errors of law. See Pl.'s Mot. Recons. 1; Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-45, ECF No. 19-1. After preliminary review of Zuza's motion, the Court ordered supplemental briefing on one of Zuza's arguments and also requested a statement of interest from the United States. See Order, ECF No. 23; Request for Statement of Interest, ECF No. 33.
In the course of supplemental briefing, Zuza also filed three additional motions: a motion to strike portions of Defendants' supplemental brief, a motion for leave to conduct jurisdictional discovery, and a motion for an order obliging Defendants to respond to the other two recently filed motions. See Pl.'s Mot. Strike, ECF No. 28; Pl.'s Mot. for Leave to Conduct Limited Jurisdictional Discovery, ECF No. 30; Pl.'s Mot. Order, ECF No. 37.
After considering all the parties' filings and the United States' statement of interest, the Court finds that the arguments in Zuza's motion for reconsideration, motion to strike, and motion for leave to conduct jurisdictional discovery have no merit. The Court will therefore deny these three motions. And because Zuza's last motion seeks further briefing on his motion to strike and his motion for leave to conduct jurisdictional discovery, the Court will deny Zuza's last motion as moot.
Rule 59(e) motions "need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Such motions cannot be used as "an opportunity to reargue facts and theories upon which a court has already ruled, nor as a vehicle for presenting theories or arguments that could have been advanced earlier." Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) (quoting SEC v. Bilzerian, 729 F.Supp.2d 9, 14 (D.D.C. 2010)). "The burden is on the moving party to show that reconsideration is appropriate and that harm or injustice would result if reconsideration were denied." United States ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F.Supp.2d 258, 268 (D.D.C. 2012) (placing the burden on the movant in the context of a Rule 54(b) motion for reconsideration); see also Kittner v. Gates, 783 F.Supp.2d 170, 172 (D.D.C. 2011) (same, for motions under Rules 59(e) and 60(b)).
Zuza first argues that the Supreme Court's opinion last year in King v. Burwell compels an analysis of the IOIA different from the textual approach adopted in this Court's decision on Defendants' motion to dismiss. See King v. Burwell, 135 S.Ct. 2480 (2015); see also Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-12. King teaches that, though courts "must enforce" plain statutory language, "when deciding whether the language is plain, [courts] must read the words `in their context and with a view to their place in the overall statutory scheme.'" King, 135 S. Ct. at 2489 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)).
But King's reasoning does not affect this Court's IOIA analysis, even assuming that King is an "intervening change of controlling law." Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).
Alternatively, King allows for consideration of a statute's "broader structure" when statutory text is ambiguous. See King, 135 S. Ct. at 2492. But Zuza's motion cites no statutory text or purpose that creates ambiguity. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 5-12.
In urging reconsideration of the Court's ruling on OHR's international organization immunity, Zuza's motion takes issue with the Court's statutory interpretation, the Court's treatment of concessions and admissions that Zuza alleges Defendants made, and the Court's rejection of the "U.S. Presence Requirement" that Zuza argues the IOIA requires. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 12-37.
All of these arguments could have been presented, however, in Zuza's opposition to the motion to dismiss and in his sur-reply. And indeed, many of these arguments were. See Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 19-37, ECF No. 6; Pl.'s Sur-Reply Opp'n Defs.' Mot. Dismiss 4-12, ECF No. 11; see also Zuza v. Office of the High Representative, 107 F.Supp.3d 90, 96-97 (D.D.C. 2015) (rejecting arguments made in Zuza's opposition and sur-reply to the motion to dismiss). The Court therefore declines to consider Zuza's arguments about OHR's immunity. See Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011) (explaining that motions for reconsideration may not be used as opportunities to relitigate arguments that were or could have been advanced earlier). And regardless, nothing in Zuza's lengthy submission raises any issues meriting reconsideration.
Zuza next argues that the Court erred in holding that the individual defendants Inzko and Ashdown are entitled to immunity as "officers" of OHR. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 38-42.
In this vein, Zuza first contends that, because Inzko and Ashdown bore the burden to establish their immunity and because they did not argue that they were "officers" under the IOIA, the Court could not find them immune from suit. See Zuza v. Office of the High Representative, 107 F.Supp.3d 90, 94 n.3, 99 n.8 (D.D.C. 2015). But as the Court explained, Defendants did argue that Zuza's argument would lead to an "absurd result." Id. at 98 (quoting Defs.' Reply 5, ECF No. 7). Defendants also argued that "[b]oth § 288f-7 and IOIA specifically grant immunity to OHR's `officers or employees' without withholding immunity from the head of the office" and that "IOIA immunity has been applied to the UN Secretary General and [to other] top international organization officials." Defs.' Reply 5-6. In addition, Defendants cited Brzak v. United Nations, 551 F.Supp.2d 313 (S.D.N.Y. 2008), upon which the Court's analysis also relied. See Zuza, 107 F. Supp. 3d at 93, 99; Mem. P. & A. Supp. Defs.' Mot. Dismiss 12, ECF No. 4-1. The fact that Defendants did not squarely contend that Inzko and Ashdown are (or were) OHR "officers" does not prevent the Court from concluding that they carried their burden to establish their immunity.
In the alternative, Zuza argues that the Court erroneously disregarded section 8(a) of the IOIA, which states that an individual must be "duly notified to and accepted by the Secretary of State as a representative, officer, or employee" before he can enjoy IOIA immunity. 22 U.S.C. § 228e(a). The parties' supplemental briefs and the United States' statement of interest address this issue at length. See Defs.' Suppl. Opp'n, ECF No. 26; Pl.'s Suppl. Brief, ECF No. 29; Statement of Interest, ECF No. 41; Defs.' Resp. to Statement of Interest, ECF No. 42; Pl.'s Mem. Resp. to the Statement of Interest, ECF No. 43; Defs.' Reply to Pl.'s Resp. Regarding Statement of Interest, ECF No. 45; Pl.'s Reply to Defs.' Resp. to Statement of Interest, ECF No. 46.
The government's statement of interest states that "the United States confirms that both individual defendants satisfy section 8(a)'s requirements." Statement of Interest 3. In support, the United States attached a signed letter from Clifton Seagroves, the Department of State's Acting Deputy Director of the Office of Foreign Missions. See Statement of Interest Ex. A, ECF No. 41-1. According to that letter, "[t]he official records of the Department of State" indicate that Inzko and Ashdown "have been notified to the Secretary of State and accepted by the Director of the Office of Foreign Missions, acting pursuant to delegated authority from the Secretary of State." Id.
With the government's statement of interest and Seagroves's signed letter, it is clear that Inzko and Ashdown meet 29 U.S.C. § 288e(a)'s requirements. Seagroves's letter expressly confirms that Inzko and Ashdown have been "notified to" and "accepted by" the Secretary of State, just as § 288e(a) prescribes. See 29 U.S.C. § 288e(a); Statement of Interest Ex. A. Letters from Inzko to the State Department also show that the State Department was notified of Inzko and Ashdown. See Defs.' Suppl. Opp'n Ex. 24 & Ex. A, ECF No. 27-1 (requesting that a list of individuals, including Inzko himself, be accepted as officers and employees entitled to IOIA immunity); Defs.' Suppl. Opp'n Ex. 25, ECF No. 26-11 (same, for Ashdown). And Zuza himself implies that a certificate or letter from the Department of State is sufficient to show acceptance. See Pl.'s Suppl. Brief 2, 11-15.
Instead of attacking the fact of Inzko's and Ashdown's notification and acceptance, Zuza merely argues that the documents verifying notification and acceptance are "unauthenticated and, therefore, inadmissible." See Pl.'s Evidentiary Obj. 1, ECF No. 31 (objecting to Inzko's letters to the State Department); Pl.'s Evidentiary Obj. Exs. Attached to Statement of Interest, ECF No. 44 (objecting to Seagroves's letter). But Federal Rule of Evidence 901 requires a proponent of evidence merely to produce "evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). To satisfy the authentication requirement, the proponent may use "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Fed. R. Evid. 901(b)(4).
Here, the letters from Inzko to the State Department bear the same letterhead and style as a later letter, which the United States expressly endorsed as being from Inzko. Compare Defs.' Suppl. Opp'n Ex. 24 & Ex. A and Defs.' Suppl. Opp'n Ex. 25 with Statement of Interest Ex. B. See also Statement of Interest 4 n.2 (describing the letter the government produced as a "Letter from Valentin Inzko to Ambassador Gentry O. Smith"). In light of these circumstances, the Court sees no reason to question the authenticity of Inzko's letters.
Similarly, Seagroves's letter was submitted directly by the Department of Justice on behalf of the United States and bears the letterhead of the State Department. See Statement of Interest Ex. A. Independent inquiry confirms that Clifton Seagroves is the Acting Deputy Director of the Office of Foreign Missions and exercises State Department functions associated with 22 U.S.C. § 288e. See Re-Delegation of Certain Authorities and Functions Under the International Organizations Immunities Act, 80 Fed. Reg. 75,700 (Dec. 3, 2015) (delegating § 288e duties to the Deputy Director of the Office of Foreign Missions and other State Department personnel); Key Personnel, U.S. Dep't of State, http://www.state.gov/ofm/contact/ personnel/index.htm (last visited Feb. 4, 2016) (informing the public of Mr. Seagroves's service as Acting Deputy Director). As with Inzko's letters, nothing gives the Court reason to question the authenticity of the State Department's letter.
Zuza's evidentiary objections lack merit, and Zuza makes no arguments disputing the relevant facts: Inzko and Ashdown were notified under 29 U.S.C. § 288e(a) to the Secretary of State, and the Secretary of State accepted them under § 288e(a) as appropriate recipients of IOIA immunity. Inzko and Ashdown therefore meet the requirements set forth in § 288e(a). On this front, Zuza has not shown a "need to correct a clear error" of law. Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004); see also Kittner v. Gates, 783 F.Supp.2d 170, 172 (D.D.C. 2011) (placing the burden of proof for a Rule 59(e) motion on the movant).
Even if Inzko and Ashdown did not meet 29 U.S.C. § 288e(a)'s requirements at the time Zuza's complaint was filed, that would not bar their IOIA immunity now. The IOIA itself states that, once individuals merit IOIA immunity, they are immune not just "from suit," but also from "legal process." 22 U.S.C. § 288d(b). And the weight of relevant case law favors finding that if international officials acquire immunity during the pendency of a suit, the suit must be dismissed. See generally Abdulaziz v. Metro. Dade Cnty., 741 F.2d 1328, 1329-30 (11th Cir. 1984) (discussing diplomatic immunity and holding that it "serves as a defense to suits already commenced"); Fun v. Pulgar, 993 F.Supp.2d 470, 474 (D.N.J. 2014) (same); Republic of Philippines v. Marcos, 665 F.Supp. 793, 799 (N.D. Cal. 1987) (same). The Supreme Court, in discussing foreign sovereign immunity, has stated that "such immunity reflects current political realities and relationships, and aims to give foreign states and their instrumentalities some present `protection from the inconvenience of suit as a gesture of comity.'" Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004). More broadly, the D.C. Circuit has explained that, for parties who merit IOIA immunity, the IOIA creates a "baseline" of "absolute immunity" to all kinds of suits. Atkinson v. Inter-Am. Dev. Bank, 156 F.3d 1335, 1341 (D.C. Cir. 1998).
These authorities persuade the Court that the IOIA, like diplomatic immunity and foreign sovereign immunity, can serve as a defense to suits already commenced. As this Court has noted before, IOIA immunity "is an immunity from trial and the attendant burdens of litigation, and not just a defense to liability on the merits." Garcia v. Sebelius, 919 F.Supp.2d 43, 47 (D.D.C. 2013) (internal quotation marks omitted) (quoting Foremost-McKesson, Inc. v. Islamic Republic of Iran, 905 F.2d 438, 443 (D.C. Cir. 1990))).
Because IOIA immunity can apply retroactively, 22 U.S.C. § 288e(a)'s requirements will not bar Inzko and Ashdown's IOIA immunity, even if they first satisfied those requirements after Zuza filed his complaint in this case. Thus, § 288e(a) is not a reason for the Court to disturb its decision to find Inzko and Ashdown immune from suit.
Zuza also argues that the Court improperly held that the "functional" immunity referenced in Tuck v. Pan American Health Organization, 668 F.2d 547, 550 n.7 (D.C. Cir. 1981), displaces the text of 22 U.S.C. § 288f-7. See Zuza v. Office of the High Representative, 107 F.Supp.3d 90, 98-100 (D.D.C. 2015); Mem. P. & A. Supp. Pl.'s Mot. Recons. 38-39. But his argument merely reiterates one the Court already rejected: Zuza's previous argument that the IOIA uses the words "officer" and "employee" in their technical sense. See Zuza, 107 F. Supp. 3d at 98-99; see also Pl.'s Mem. Opp'n Defs.' Mot. Dismiss 38-42 (making the argument for a technical interpretation). As the Court noted before, "the IOIA cannot bear such an `absurd result.'" Zuza, 107 F. Supp. 3d at 98 (quoting Defs.' Reply 5); see also United States v. Turkette, 452 U.S. 576, 580 (1981) (instructing that, in statutory interpretation, "absurd results are to be avoided"). A motion for reconsideration is not a vehicle to relitigate this issue. See Estate of Gaither ex rel. Gaither v. District of Columbia, 771 F.Supp.2d 5, 10 (D.D.C. 2011).
Lastly, Zuza contends that the Court erred by including in its opinion certain facts not alleged in the complaint concerning the Dayton Peace Agreement and the Peace Implementation Council. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 43-44; Zuza v. Office of the High Representative, 107 F.Supp.3d 90, 91 (D.D.C. 2015). Specifically, Zuza argues that because Defendants had "conceded" certain factual issues, the Court should not have adjudicated them in Defendants' favor. See Mem. P. & A. Supp. Pl.'s Mot. Recons. 43.
The standard of review for a Rule 12(b)(1) motion to dismiss allows the Court to "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation mark omitted) (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). But contrary to Zuza's argument, Defendants did not concede the factual issues to which Zuza refers, and so those facts are not "undisputed." Instead, Defendants' motion to dismiss outlines the very facts (adopted by the Court in its opinion) that Zuza says his complaint contradicts. See Mem. P. & A. Supp. Defs.' Mot. Dismiss 2-4, ECF No. 4-1. These facts were thus "disputed," and the Court was not required to adopt Zuza's version; it could resolve the disputed facts based on the record at the time of the Court's decision. See Coal. for Underground Expansion, 333 F.3d at 198. For that reason, the Court's factual summary did not contain "a clear error," and the Court need not reconsider its prior decision. See Ciralsky v. CIA, 355 F.3d 661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)).
In sum, none of Zuza's arguments urging reconsideration have merit. The Court will therefore deny Zuza's motion for reconsideration.
Zuza has also moved to strike portions of Defendants' supplemental brief. See Pl.'s Mot. Strike, ECF No. 28; see also Defs.' Suppl. Opp'n, ECF No. 26 (containing the text at issue in Zuza's motion to strike). But this motion, like his motion for reconsideration, lacks merit. Contrary to Zuza's claim that the arguments contained in Defendants' brief are "immaterial" under Federal Rule of Civil Procedure 12(f), Defendants' arguments directly respond to the Court's order, which directs the parties to address whether "Inzko and Ashdown presently satisfy the requirements of section 8(a)." See Order 3, ECF No. 23; Defs.' Suppl. Opp'n 4-12; cf. Pl.'s Mem. P. & A. Supp. Mot. Strike 3-6, ECF No. 28-1. And the remainder of Zuza's motion seeks to strike material that does not affect the Court's analysis here. See Pl.'s Mot. Strike 6-8 (discussing personal jurisdiction and other defenses briefly mentioned in Defendant's supplemental brief); supra Parts III.A-D (declining to address those topics). The Court will therefore deny Zuza's motion to strike.
Zuza's motion for leave to conduct jurisdictional discovery alleges that Zuza "requires facts in order to respond to Individual Defendants' fact-based jurisdictional defense." Mem. P. & A. Supp. Mot. for Leave to Conduct Limited Jurisdictional Discovery 3, ECF No. 30-1. But the facts here are so clear that any jurisdictional discovery would be futile. See Peterson v. Islamic Republic of Iran, 563 F.Supp.2d 268, 274 (D.D.C. 2008) ("[J]urisdictional discovery . . . should not be allowed when discovery would be futile." (internal quotation marks omitted) (quoting Crist v. Republic of Turkey, 995 F.Supp. 5, 12 (D.D.C. 1998))). Zuza does not factually dispute the government's statement that Inzko and Ashdown were notified to and accepted by the Secretary of State, just as 29 U.S.C. § 288e(a) requires. See generally supra Part III.C.2 (discussing how the government's statement is conclusive on this issue). As set forth above, Zuza only challenges the authenticity of documents and legal implications of those facts. See id. Neither of which requires the uncovering of unknown facts.
In fact, Zuza has offered no theory of what "facts" jurisdictional discovery would uncover to refute Defendants' immunity claims. See Mem. P. & A. Supp. Mot. for Leave to Conduct Limited Jurisdictional Discovery 3. Because "jurisdictional discovery should be permitted `only to verify allegations of specific facts,'" the Court will deny Zuza's motion for leave to conduct jurisdictional discovery. See Crist, 995 F. Supp. at 13 (quoting Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992)).
Zuza's last motion seeks an order obliging Defendants to respond to Zuza's motion to strike, Zuza's motion for jurisdictional discovery, and one of Zuza's evidentiary objections. See Pl.'s Mot. Order, ECF No. 37. Because the Court will deny Zuza's other motions and also finds Zuza's evidentiary objection meritless, the Court will deny Zuza's last motion as moot. See supra Part III.C.2.b (refuting Zuza's evidentiary objection); supra Parts III.E.1-2 (discussing Zuza's motion to strike and motion for jurisdictional discovery).
For the foregoing reasons, Plaintiff's motion for reconsideration (ECF No. 19) is
Although these cases assessed IOIA immunity using the date on which the complaints were filed, they did so because of the facts of those cases. Both Garcia and Weidner concerned foreign officials who gained immunity after the events triggering the lawsuits, but before the complaints were filed. See Garcia, 867 F. Supp. 2d at 144; Weidner, 392 A.2d at 510. The question before the Court now—whether immunity may apply retroactively if it is acquired during the pendency of suit—was not squarely presented. Thus, where cases like Garcia and Weidner imply that, for IOIA immunity to apply, it must be present when the complaint is filed, that implication is merely dicta. It is not central to those cases' holdings and accordingly does not affect the Court's analysis here.
